Sun Life India Service Centre Pvt. Ltd., Gurgaon V. ACIT, Gurgaon

ITA 468/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3035 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I2
• Next Hearing Date: 13-07-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 27-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VAT SAVA JAHA
• Assessee Lawyers: G C SRIVASTAVA
• Keywords: Transfer pricing; Principle of natural justice; International transaction; Rule of consistency; Initiation of penalty proceedings
• Section: 143(3); 234B; 154

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I - 2 : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13 ) SUN LIFE INDIA SERVICES CENTRE PVT. LTD, BLOCK - A, 3 RD FLOOR, SP INFOCITY, 243 UDYOG VIHAR PHASE - I, GURGAON VS. ACIT, CIRCLE - 4, GURGAON (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GC SRIVASTAVA, SR. ADV REVENUE BY: MS. VAT SAVA JAHA, CIT DR DATE OF HEARING 20/12 /2017 DATE OF PRONOUNCEMENT 1 9 / 03 / 2018 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE ACIT, CIRCLE - 4(1), GURGAON (THE LD AO) MADE U/S 143(3) READ WITH SECTION 144C OF THE INCOME TAX ACT, 1961 ON 22.12.2016 PURSUANT TO THE DIRECTION OF THE LD DISPUTE RESOLUTION PANEL - I, NEW DELHI (THE LD DRP) ISSUED U/S 144C(5) OF THE ACT ON 23.08.2016. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER (AO') HAS ERRED IN PASSING THE ASSESSMENT ORDER UNDER SECTION 143(3) READ WITH SECTION 144C OF THE INCOME - TAX ACT, 1961 (THE ACT) AFTER CONSIDERING THE ADJUSTMENTS PROPOSED BY THE LEARNED TRANSFER PRICING OFFICER (TPO) IN HIS ORDER PASSED UNDER SECTION 92CA(3) OF THE ACT AND SUBSEQUENTLY CONFIRMED BY THE HONBLE DISPUTE RESOLUTION PANEL (DRP). SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 2 EACH OF THE GROUND IS REFERRED TO SEPARATELY, WHICH MAY KINDLY BE CONSIDERED INDEPENDENT OF EACH OTHER. GROUNDS RELATING TO TRANSFER PRICING MATTERS: ON FACTS AND CIRCUMSTANCES OF THE CASE, AN IN LAW: GROUND NO. 1 THE LEARNED TPO / AO / DRP HAVE ERRED IN MAKING AN ADJUSTMEN T OF INR 30,690,359 TO THE TOTAL INCOME OF THE APPELLANT IN RESPECT OF INTERNATIONAL TRANSACTIONS PERTAINING TO PROVISION OF BACK OFFICE SUPPORT SERVICES AND ADVISORY SUPPORT SERVICES BY THE APPELLANT TO ITS ASSOCIATED ENTERPRISES (AES) (HEREINAFTER REFE RRED TO AS IMPUGNED TRANSACTIONS). GROUND NO. 2 THE LEARNED AO / TPO / DRP HAVE ERRED IN NOT ACCEPTING THE ECONOMIC ANALYSIS UNDERTAKEN BY THE APPELLANT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT READ WITH THE INCOME - TAX RULES, 1962 (THE RULES), AND MODIFYING THE SAME FOR THE DETERMINATION OF THE ARMS LENGTH PRICE (ALP) OF THE IMPUGNED TRANSACTIONS TO HOLD THAT THE SAME ARE NOT AT ARMS LENGTH. GROUND NO. 3 THE LEARNED AO / TPO / DRP HAVE ERRED IN: (A) NOT ACCEPTING THE USE OF MULTIPLE YEAR DATA, AS ADOPTED BY THE APPELLANT IN TP DOCUMENTATION; AND SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 3 (B) DETERMINING THE ARMS LENGTH MARGINS / PRICES USING DATA PERTAINING ONLY TO FINANCIAL YEAR (FY) 2011 - 12 WHICH WAS NOT AVAILABLE TO THE APPELLANT AT THE TIME OF COMPLYING WITH THE INDIAN TP DOCUMEN TATION REQUIREMENTS. GROUND NO. 4 THE LEARNED TPO / AO / DRP HAVE ERRED, IN REJECTING CERTAIN COMPARABLE COMPANIES SELECTED BY THE APPELLANT BY APPLYING INAPPROPRIATE COMPARABILITY CRITERIA SUCH AS: A. TURNOVER LESS THAN INR 1 CRORE; B. DIFFERENT ACCOUNTIN G YEAR; C. EMPLOYEE COST LESS THAN 25 PERCENT OF TOTAL COST; AND D. EXPORT TURNOVER LESS THAN 75 PERCENT OF OPERATING REVENUES. GROUND NO. 5 THE LEARNED TPO/ AO/ DRP HAVE ERRED IN SELECTING CERTAIN COMPANIES (WHICH ARE EARNING SUPERNORMAL PROFITS) AS COMPA RABLE TO THE APPELLANT TO BENCHMARK THE IMPUGNED TRANSACTIONS. THE LEARNED TPO/ AO/ DRP HAVE ERRED IN WRONGLY REJECTING CERTAIN COMPANIES FROM AND ICLUDING CERTAIN COMPANIES TO THE SET OF FINAL COMPARABLES FOR THE IMPUGNED TRANSACTIONS ON AN AD - HOC BASIS, THEREBY RESORTING TO CHERRY PICKING OF COMPARABLE FOR BENCHMARKING THE IMPUGNED TRANSACTIONS. GROUND NO. 7 SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 4 THE LEANED DRP HAS ERRED IN NOT ADJUDICATING CERTAIN OBJECTIONS RAISED BY THE APPELLANT IN RESPECT OF CERTAIN COMPANIES IDENTIFIED AS COMPARABLE BY THE LEARNED TPO, THEREBY NOT PASSING A SPEAKING ORDER AND VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. GROUND NO. 8 THE LEARNED TPO / AO / DRP HAVE ERRED IN TREATMENT OF CERTAIN OPERATING AND NONOPERATING ITEMS WHILE COMPUTING THE MARGINS OF THE APPELLANT AND COMPARABLE COMPANIES. GROUND NO. 9 THE LEARNED TPO/ AO/ DRP HAVE ERRED IN NOT MAKING SUITABLE ADJUSTMENTS TO ACCOUNT FOR DIFFERENCES IN THE RISK PROFILE OF THE APPELLANT VIS - A - VIS THE COMPARABLE COMPANIES. GROUND NO. 10 THE LEARNED TPO / AO / DRP HAVE ERRED IN NOT FOLLOWING THE ORDERS OF HONBLE ITAT FOR EARLIER YEARS THEREBY NOT FOLLOWING THE PRINCIPLE OF BINDING PRECEDENTS. GROUNDS RELATING TO CORPORATE TAX MATTERS GROUND NO. 11 THE LEARNED AO HAS ERRED IN NOT GRANTING THE MAT CREDIT AVAILABLE TO THE APPELLANT IN TERMS OF SECTION 115JAA OF THE ACT AND ALSO ERRED IN CHARGING CONSEQUENTIAL INTEREST UNDER SECTION 234B AND SECTION 234C OF THE ACT. GROUND NO. 12 SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 5 THE LEARNED AO HAS ERRED IN INITIATING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT . 3. THE ASSESSEE IS A COMPANY ENGAGED IN PROVIDING SOFTWARE DEVELOPMENT AND MAINTENANCE SUPPORT SERVICE TO ITS ASSOCIATED ENTERPRISE FOR ASSISTANCE IN THEIR PROJECTS. THE ASSESSEE IS ENGAGED IN RENDERING ITES INCLUDING BACK OFFICE PROCESSING FOR GROUP COMPA NIES. IT FILED ITS RETURN OF INCOME ON 29.11.2012 FOR AY 2012 - 13 AT RS. 187939230/ - . IT WAS REVISED ON 29.03.2014 AT RS. 179039040/ - . AS THE ASSESSEE IS PROVIDING SERVICES TO ITS ASSOCIATED ENTERPRISES THE INTERNATIONAL TRANSACTION ENTERED INTO BY THE ASSE SSEE WERE REFERRED TO THE ACIT, TRANSFER PRICING OFFICER (3)(2), NEW DELHI ON 31.12.2014 FOR DETERMINING ARMS LENGTH PRICE (ALP) . THE LD TPO PASSED AN ORDER U/S 92CA(3) ON 27.01.2016 PROPOSING AN ADJUSTMENT OF RS. 147136588/ - ON ACCOUNT OF ARMS LENGTH PR ICE OF INTERNATIONAL TRANSACTION. ORDER U/S 154 WAS PASSED BY THE LD TRANSFER PRICING OFFICER ON 24.05.2016 WHEREIN, CERTAIN MISTAKES POINTED OUT BY THE ASSESSEE WERE RECTIFIED AND THE ADJUSTMENT WAS REVISED IN SOFTWARE DEVELOPMENT SERVICES TO RS. 26784804 / - , IN ITES SEGMENT TO RS. 69100573/ - AND IN ADVISORY SEGMENT RS. 18390371/ - . CONSEQUENTLY, DRAFT ASSESSMENT ORDER PROPOSING VARIATION TO THE RETURNED INCOME WAS MADE ON 01.03.2016. THE ASSESSEE PREFERRED OBJECTIONS TO THE LD DRP WHO PASSED DIRECTION ON 23 .08.2016 AND AN ASSESSMENT ORDER U/S 143(3) WAS PASSED DETERMINING TOTAL INCOME OF THE ASSESSEE AT RS. 209729 400/ - AGAINST RETURNED INCOME OF RS. 179039040/ - . AGAINST THIS ORDER THE ASSESSEE HAS PREFERERED THIS APPEAL. 4. GROUND NO. 1 AND 2 OF THE APPEAL ARE GENERAL IN NATURE AND THEREFORE, SAME ARE DISMISSED. SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 6 5. GROUND NO. 7, 8 AND 9 OF THE APPEAL WERE NOT PRESSED BEFORE US AND THEREFORE, THEY ARE DISMISSED. 6. GROUND NO. 3, 4, 5 AND 6 ARE RELATED TO TRANSFER PRICING ADJUSTMENT IN VARIOUS SEGMENTS AND THEREFORE, THEY ARE DEALT WITH TOGETHER. 7. THE BRIEF FACTS SHOWS THAT ASSESSEE IS A CAPTIVE SERVICE PROVIDER AND PROVIDES BACK OFFICE SUPPORT SERVICES, ADVISORY SUPPORT SERVICES TO ITS ASSOCIATED ENTERPRISES. FOR THE YEAR IT ENTERED INTO INTERNATIONAL TRANSACTION OF BACK OFFICE SUPPORT SERVICE OF RS. 463699081/ - AND ADVISORY SUPPORT SERVICES OF RS. 106511297/ - . THE APPELLANT COMPUTED ITS MARGIN OF 14.86% AND 15.83%. MARGIN OF THE COMPARABLE COMPANIES WAS TAKEN AT 8.17% AND 9.17 % AND THEREFORE, SAME WAS STATED TO BE AT ARMS LENGTH. THE ASSESSEE ALSO PROVIDES SOFTWARE DEVELOPMENT AND MAINTENANCE SERVICES AND THERE IS NO DISPUTE WITH RESPECT TO INTERNATIONAL TRANSACTION IN THAT SERVICES. THE LD TRANSFER PRICING OFFICER COMPUTED THE MAR GIN OF COMPARABLES AT 21.01% AND 22.22% RESPECTIVELY FOR BOTH THE SEGMENTS AND PROPOSED AN ADJUSTMENT OF RS. 24814983/ - AND RS. 5875376/ - RESPECTIVELY. THE MAIN GRIEVANCE OF THE ASSESSEE WAS WITH RESPECT TO FOLLOWING COMPARABLES SELECTED BY THE LD TRANSFE R PRICING OFFICER IN BACK OFFICE SUPPORT SERVICES FOR WHICH ASSESSEE SEEKS EXCLUSION OF THE FOLLOWING TWO COMPARABLES: - A. INFOSYS BPO LTD B. TCS E - SERVE LTD 8. THE ASSESSEE SEEKS INCLU SION OF FOLLOWING TWO COMPARABLES WHICH ARE EXCLUDED BY THE LD TPO: - A. R SYST EMS INTERNATIONAL LTD B. CG VAK SOFTWARE AND EXPORTS LTD SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 7 9. WITH RESPECT TO THE ADVISORY SUPPORT SERVICES THE ASSESSEE IS CONTESTING FOR EXCLUSION OF COMPARABLE COMPANY SELECTED BY THE TPO OF LADDER UP CORPORATE ADVISORY PVT LTD AND INMAC MANAGEMENT SERVICES P VT LTD. FURTHER, IT IS SEEKING FOR INCLUSION OF I CRA MANAGEMENT CONSULTANCY SERVICES AND CYBER MEDIA RESEARCH LTD. 10. THE LD AUTHORISED REPRESENTATIVE REFERRED TO THE FUNCTIONS PERFORMED BY THE ASSESSEE WHICH ARE ALSO COVERED AT PAGE NO. 5 TO 14 OF THE ORDER OF THE LD TRANSFER PRICING OFFICER. HE SUBMITTED THAT TH E RE IS NO DISPUTE ABOUT THE FUNCTIONS PERFORMED BY THE ASSESSEE COMPANY. THEREFORE, HE SUBMITTED THAT BASED ON THOSE FUNCTIONS THE ASSESSEE IN THE BACK OFFICE SUPPORT SERVICES SEGMENT IS OBJECTING ABOUT THE INCLUSION OF INFOSYS BPO LTD AND TCS E - SERVICE LTD. HE SUBMITTED THAT BOTH THE ABOVE COMPARABLE COMPANIES HAVE BEEN CONSIDERED BY THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR AY 2010 - 11 AND THE LD TPO HAS BEEN DIRECTED TO EXCLUDE THE SAME. THEREFORE, HE SUBMITTED THAT ISSUE WITH RESPECT TO THESE TWO COMPANIES IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE. 11. THE LD DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE LOWER AUTHORITIES. 12. WE H AVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDER OF THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010 - 11 IN ITA NO. 750/DEL/2015 WHEREIN, VIDE PARA NO. 10.19 IN THE BUSINESS SUPPORT SEGMENT OF THE ASSESSEE THE CO ORDINATE BENCH HAS DIRECTED THE LD TRANSFER PRICING OFFICER FOR EXCLUSION OF THIS COMPANY FROM THE COMPARABILITY ANALYSIS AS UNDER: - INFOSYS BPO LTD SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 8 10.19. THE TPO INCLUDED THIS COMPANY DESPITE ASSESSEE'S OBJECTIONS. ASSESSEE HAD OBJECTED FOR INCLUSION OF THIS COMPANY AS IT PROVIDES HIGH - END INTEGRATED SERVICES IN THE NATURE OF BUSINESS PLATFORMS, CUSTOMER SERVICE OUTSOURCING, FINANCE AND ACCOUNTING LP O, HR OUTSOURCING, SOURCING AND PROCUREMENT OUTSOURCING ETC. THE COMPANY ALSO HAS A HIGH BRAND VALUE OF GOODWILL AND HAS ACQUIRED A COMPANY OR BY THE NAME MCCSMISH SYSTEMS LLC TO PROVIDE END - TO - END SOLUTIONS. 10.20. LD.DR, HOWEVER, REFER TO THE EXTRACTS M ADE BY THE LD.TPO IN THE ORDER TO SUBMIT THAT INFOSYS BPO LTD. IS A COMPARABLE COMPANY WITH THAT OF ASSESSEE. THE LD.DR RELIED UPON THE EXTRACT OF THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CHRIS CAPITAL INVESTMENT VS. DCIT (SUPRA), WHICH HAS BEEN REPRODUCED HEREINABOVE. 10.21. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PURSUING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT FOR THE YEAR UNDER CONSIDERATION, THIS COMPANY HAS HAD EXTRAORDINARY FINANCIAL EVENTS. IT IS NOTED THAT THE COMPANY IS P ROVIDING HIGH END INTEGRATED SERVICE BY ASSISTING ITS CLIENTS IN IMPROVING THEIR COMPETITIVE POSITIONING BY MANAGING THEIR BUSINESS PROCESS IN ADDITION TO PROVIDING INCREASED VALUE. ON THE OTHER HAND, ASSESSEE IS ENGAGED IN PROVIDING ROUTINE SUPPORT SERVIC ES IN THE NATURE OF DATA COLLECTION AND ANALYSIS WHICH IS LOW END IN NATURE BEARING MINIMAL RISKS. 10.22 LD. A.R. HAS RIGHTLY PLACED HIS RELIANCE UPON THE DECISION OF AGNITY INDIA TECHNOLOGIES PVT. LTD. PASSED BY HON'BLE DELHI HIGH COURT IN I.T.A.NO. 3856 /2010 WHEREIN, IT SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 9 HAS BEEN HELD THAT THIS COMPARABLE MUST BE REJECTED ON ACCOUNT OF DIFFERENCE IN RISK LEVELS ASSUMED, HUGE REVENUES DERIVED AND THE FACT THAT THEY ARE MARKET LEADERS. HON'BLE COURT HELD AS UNDER: 'IT IS ARGUED THAT THE CASE OF ASSESSEE IS NOT COMPARABLE WITH INFOSYS TECHNOLOGIES LTD., THE REASON BEING THAT THE LATTER IS GIANTS IN THE AREA OF DEVELOPMENT OF SOFTWARE AND IT ASSUMES ALL RISKS, LEADING TO HIGHER PROFIT. ON THE OTHER HAND, THE ASSESSEE IS A CAPTIVE UNIT OF ITS PARENT COMPANY IN THE USA AND IT ASSUMES ONLY LIMITED CURRENCY RISK. HAVING CONSIDERED THESE POINTS, WE ARE OF THE VIEW THAT THE CASE OF AFORESAID INFOSYS AND THE ASSESSEE ARE NOT COMPARABLE AT ALL AS SEEN FROM THE FINANCIAL DATA ETC. OF THE TWO COMPANIES MENTIONED EARLIER IN THIS ORDER. THEREFORE, WE ARE OF THE VIEW THAT THIS CASE IS REQUIRED TO BE EXCLUDED.' 10.23 SINCE THERE IS NO SIMILARITY IN THE FUNCTIONAL PROFILE OF THIS COMPANY AND ASSESSEE RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN AGNITY INDIA TECHNOLOGIES (SUP RA), WE DIRECT THE TPO/AO FOR REMOVAL OF THIS COMPANY FROM THE LIST OF COMPARABLES. 13. SIMILARLY, IN CASE OF TCS E - SERVE LTD THE COORDINATE BENCH HAS DIRECTED FOR EXCLUSION VIDE PARA NO. 10.31 AND 10.32 OF THAT ORDER AS UNDER: - TCS E - SERVE LTD 10.31. THE LD.TPO HAD INCLUDED THIS COMPANY AS A COMPARABLE DESPITE OBJECTIONS BY THE ASSESSEE. THE ASSESSEE OBJECTED THE INCLUSION OF THIS COMPANY AS IT SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 10 PROVIDED FINANCIAL INFORMATION PROCESSING AND CUSTOMER CONTACT SERVICES WITH HIGH - LEVEL OF FOREIGN EXPENDITURE AN D ABNORMAL PROFITS. 10.31. LD.DR, HOWEVER, REFER TO THE EXTRACTS MADE BY THE LD.TPO IN THE ORDER TO SUBMIT THAT TCS E SERVE LTD. IS A COMPARABLE COMPANY WITH THAT OF ASSESSEE. THE LD.DR RELIED UPON THE EXTRACT OF THE DECISION OF HON'BLE DELHI HIGH COURT I N THE CASE OF CHRIS CAPITAL INVESTMENT VS DCIT (SUPRA), WHICH HAS BEEN REPRODUCED HEREINABOVE. 10.32. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PURSUING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE FINANCIAL RESULTS OF THIS COMPANY SHOWS THAT THIS COMPANY IS INTO FINANCIAL SERVICES TO HELP ITS CUSTOMERS ACHIEVE THEIR BUSINESS OBJECTIVES BY PROVIDING INNOVATIVE BEST IN CLASS SERVICES. DURING THE YEAR UNDER CONSIDERATION, THIS COMPANY HAS MADE PAYMENTS TOWARDS USE OF TATA BRAND. CONSEQUENTIALLY USE OF THE TCS BRAND HAS SUBSTANTIALLY INCREASED THE OPERATING PROFITS POST ACQUISITION. IT IS OBSERVED FROM THE ORDER PASSED BY LD.TPO FOR ASSESSMENT YEAR 2009 - 10 THAT THE LD.TPO HIMSELF HAD NOT CONSIDERED THIS COMPANY AS A COMPARABLE. WITHOUT ANY PROPER REASON OR CHANGE IN THE FUNCTIONALITY AND FINANCIAL DATA FOR THE YEAR UNDER CONSIDERATION, IT CANNOT BE HELD THAT THIS COMPANY CAN BE CONSIDERED AS A COMPARABLE. THE LD. TPO HAS TO BRING SOME MATERIAL ON RECORD TO SHOW THAT'S WHY THIS COMPARABLE WAS A BAD COMPAR ABLE, IN THE PREVIOUS YEAR AND IN THE SUCCEEDING YEAR IT IS A GOOD COMPARABLE. ADMITTEDLY NEITHER THE TPO NOR THE LD. DR HAS BEEN ABLE TO DEMONSTRATE THE SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 11 DIFFERENCE IN THE FUNCTIONALITY AND FINANCIAL DATA. HENCE FOLLOWING THE RULE OF CONSISTENCY, WE ARE OF THE OPINION THAT THIS COMPANY CANNOT BE CONSIDERED AS COMPARABLE FOR THE YEAR UNDER CONSIDERATION. WE THEREFORE DIRECT TO EXCLUDE THIS COMPARABLE. 14. THE LD DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY REASON THAT WHY THE ABOVE DECISION OF THE COORDINATE BENCH SHOULD NOT BE FOLLOWED FOR EXCLUSION OF THE COMPARABLE COMPANIES FOR THIS YEAR TOO. FURTHERMORE, AS THERE IS NO CHANGE IN THE FUNCTIONAL PROFILE OF THE COMPANY COMPARED TO THE AY 2010 - 11 AND AS THE ISSUE IS SQUAR ELY COVERED IN FAVOUR OF THE ASSESSEE IN ITS OWN CASE BY THE ORDER OF EARLIER YEAR WHICH JUDICIALLY BINDS US , WE RESPECTFULLY FOLLOWING THE SAME , DIRECT THE LD TRANSFER PRICING OFFICER TO EXCLUDE INFOSYS BPO LTD AND TCS E - SERVE LTD AS COMPARABLE COMPANIES FROM THE COMPARABILITY ANALYSIS OF BACK OFFICE SUPPORT SERVICES SEGMENT . 15. REGARDING THE INCLUSION OF R SYSTEM LTD WHERE THE SEGMENTAL DATA IS PROVIDED , THE LD TRANSFER PRICING OFFICER HAS REJECTED THIS COMPARABLE FOR THE SOLE REASON THAT IT FOLLOWS DIFFERE NT FINANCIAL YEAR THEN OF THE ASSESSEE. THE LD AR SUBMITTED THAT THIS ISSUE IS ALSO COVERED BY THE DECISION IN ASSESSEES OWN CASE FOR AY 2010 - 11 OF THE ORDER OF THE COORDINATE BENCH. 16. THE LD DEPARTMENTAL REPRESENTATIVE VEHEMENTLY OBJECTED SUBMITTING THAT IN ABSENCE OF ANY RELIABLE DATA THIS COMPANY CANNOT BE INCLUDED AS IT FOLLOWS DIFFERENT FINANCIAL YEAR. 17. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS THE ORDER OF SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 12 THE COORDINATE BENCH I N ASSESSEES OWN CASE FOR AY 2010 - 11 WHEREIN, AT PARA NO. 10.38 AND 10.40 THE ABOVE COMPARABLE COMPANY WAS DIRECTED TO BE INCLUDED IN THE FINAL LIST OF COMPARABLE AS UNDER: - R SYSTEMS INTERNATIONAL LTD 10.38. THE LD.TPO HAS REJECTED THE COMPANY ON ACCOU NT OF DIFFERENT FINANCIAL YEAR ENDING VIS - A - VIS THE ASSESSEE. THE LD.AR SUBMITTED THAT COMPANIES WHOSE FINANCIAL DATA WAS AVAILABLE FOR THE RELEVANT PERIOD, WERE CONSIDERED IN VIEW OF RULE 10 D (4), WHICH PROVIDES THAT INFORMATION TO BE USED MUST BE CONTEM PORANEOUS. THE LD. AR FURTHER SUBMITTED THAT THOUGH THE COMPANY HAS DIFFERENT FINANCIAL YEAR ENDING, WERE OPERATING DURING THE SAME PERIOD OF TIME AS THE ASSESSEE, AND WERE ALSO FACING SIMILAR BUSINESS CYCLES, MARKET AND ECONOMIC CONDITIONS AS FACED BY ASS ESSEE HAVING FINANCIAL YEAR FROM APRIL TO MARCH. HE THUS SUBMITTED THAT IN ABSENCE OF EVIDENCE AVAILABLE TO THE CONTRARY THAT THERE HAS BEEN A SIGNIFICANT IMPACT ON THE MARGINS DUE TO CHANGE IN DIFFERENT REPORTING/ACCOUNTING PERIOD, IT IS INCORRECT TO DISR EGARD THE COMPARABLE USING THIS FILTER. LD.DR, HOWEVER, REFERRED TO THE EXTRACTS MADE BY THE LD.TPO IN HIS ORDER TO SUBMIT THAT R SYSTEMS INTERNATIONAL LTD., SHOULD NOT BE CONSIDERED COMPARABLE WITH ASSESSEE. 10.39. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PURSUING THE RELEVANT MATERIAL ON RECORD WE FIND THAT THE LD. TPO HAS NOT POINTED OUT EXACT DIFFERENCE, THE CHANGE OF ACCOUNTING YEAR HAS MADE TO THE FINANCIAL RESULTS OF THE COMPARABLE. THE LD.TPO HAS FURTHER NOT POINTED OUT WHETHER IT WOULD NOT BE SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 13 PO SSIBLE TO RESTATE THOSE FINANCIAL RESULTS FOR A DIFFERENT ACCOUNTING PERIOD WITHOUT SIGNIFICANT CHANGE IN NET PROFIT MARGINS OR ANY OTHER PARAMETERS CONSIDERED RELEVANT. MULTINATIONAL COMPANIES GENERALLY OPERATE IN DIFFERENT GEOGRAPHICAL REGIONS AND DIFFER ENT COUNTRIES FOLLOW DIFFERENT ACCOUNTING OR FINANCIAL YEARS, FUNCTIONALLY SIMILAR OR EVEN IDENTICAL COMPANIES, CANNOT BE HELD TO BE INCOMPARABLE, ONLY OWING TO DIFFERENCES IN THE DATE OF ENDING OF THE FINANCIAL YEAR. AS MOST OF THE BUSINESS ENTERPRISES OP ERATE ON THE GOING CONCERN CONCEPT, WHICH IS SO FUNDAMENTAL TO PRESENT THE ACCOUNTING, THE PB AT CONCEPT USED IN ACCOUNTING IS JUST AN ARTIFICIAL MEANS TO RECKON THE OPERATING RESULTS OF BUSINESS OPERATION AT A GIVEN POINT IN TIME AND NOTHING WOULD TURN UP ON CHANGING THE END OF ACCOUNTING PERIOD FROM 31ST MARCH TO ANY OTHER DATE WITHIN A SHORT SPAN OF TIME. ASSUMING A SITUATION WHERE THE TESTED PARTY IS FOLLOWING A DIFFERENT FINANCIAL YEAR ENDING (SAY 01/01/2010 TO 31/12/2010), FOLLOWING THE FILTER ADOPTED BY THE LD.TPO, ONE WOULD REJECT ALL THE COMPANY WITH THE FINANCIAL YEAR ENDING 31ST OF MARCH 2010 AND ONLY CONSIDER COMPANIES WITH FINANCIAL YEAR ENDING 31/12/2010. THE NUMBER OF COMPARABLE COMPANIES AVAILABLE AFTER USING SUCH A FILTER WOULD BE VERY LIMIT ED AND THEREFORE, IN SUCH A CASE THE NET MARGIN EARNED BY THE COMPARABLE COMPANIES WOULD BE DIFFERENT FROM THE ONE THAT WOULD BE COMPUTED WITHOUT USING THIS FILTER. THIS VIEW IS SUPPORTED BY THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF DCIT VS. MCK INSEY KNOWLEDGE CENTRE INDIA PRIVATE LIMITED IN ITA NO. 2195/DEL/2011 WHEREIN IT HAS BEEN HELD THAT IF A COMPANY IS SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 14 FUNCTIONALLY COMPARABLE, IT CANNOT BE REJECTED MERELY ON THE GROUND THAT DATA FOR THE ENTIRE FINANCIAL YEAR WAS UNAVAILABLE, IF THE DATA CAN BE REASONABLY EXTRAPOLATED. HON'BLE TRIBUNAL FURTHER OBSERVED THAT RULE 10 B (4) CANNOT BE INTERPRETED IN SUCH A RIGID MANNER SO AS TO DEFEAT THE BASIC OBJECTIVE OF THE RULE. THE RELEVANT EXTRACT OF THE RULING ARE REPRODUCED BELOW: ' 23. ..... HOWEVER, IN OUR CONSIDERED OPINION, IF A COMPARABLE IS FUNCTIONALLY SAME AS THAT OF THE TESTED PARTY THEN THE SAME CANNOT BE REJECTED MERELY ON THE GROUND THAT DATA FOR ENTIRE FINANCIAL YEAR IS NOT AVAILABLE. IF FROM THE AVAILABLE DATA ON RECORD THE RESULTS WERE FINANCIAL YEAR CAN BE REASONABLY EXTRAPOLATED, THEN THE COMPARABLE CANNOT BE EXCLUDED SOLELY ON THIS GROUND. THE LEARN ADR AS REFERRED TO RULE 10 B (4) WHICH ONLY MANDATES THAT THE DATA WHICH IS TO BE UTILISED FOR ANALYSING THE COMPARABILI TY OF UNCONTROLLED TRANSACTIONS WITH AN INTERNATIONAL TRANSACTION, HAS TO BE FINANCIAL YEAR ONLY IN WHICH THE INTERNATIONAL TRANSACTION HAS BEEN ENTERED INTO. THIS RULE IS BASED ON MATCHING PRINCIPLE BUT THIS ROLE CANNOT BE INTERPRETED IN SUCH A RIGID MANN ER SO AS TO DEFEAT THE BASIC OBJECT OF RULE VIZ., SELECTION OF THE COMPARABLE FOR DETERMINATION OF ARMS LENGTH PRICE OF AN INTERNATIONAL TRANSACTION' (EMPHASIS SUPPLIED) 10.40. IN ANY CASE THE LD.TPO HAS NOT CITED ANY INSTANCES OF FUNCTIONAL DISSIMILARITY OF THIS COMPARABLE COMPANY WITH THAT SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 15 OF ASSESSEE. WE THEREFORE DIRECT THE LD. AO/TPO TO CONSIDER THIS COMPANY IN THE FINAL LIST OF COMPARABLE. 18. THE LD DEPARTMENTAL REPRESENTATIVE COULD NOT SHOW US ANY REASON TO DEVIATE FROM THE DECISION OF THE COORDINATE BENCH. IN VIEW OF THIS WE DIRECT THE LD TRANSFER PRICING OFFICER TO INCLUDE R SYSTEM INTERNATIONAL LTD AS COMPARABLE COMPANY AS THE ABOVE COMPANY IS FOUND FUNCTIONALLY COMPARABLE. FURTHER, WITH RESPECT TO THE MISMATCH OF THE FY THE ASSESSEE IS DIRECTED TO PROVIDE AUDITED, PUBLICLY AVAILABLE FINANCIAL INFORMATION WITH RESPECT TO QUARTERLY RESULTS OF THE COMPANY TO RECONSTRUCT THE COMPARATIVE FINANCIAL YEARS FINANCIAL DATA TO THE LD TRANSFER PRICING OFFICER. 19. WITH RESPECT TO CG VAK SOFTWARE LTD THE CONTENTIO N OF THE LD DR IS THAT IT IS FUNCTIONALLY DISSIMILAR AND INCURRING PERSISTENT OPERATING LOSSES. TO THIS THE LD AR SUBMITTED THAT ASSESSEE HAS CONSIDERED THE SEGMENTAL RESULTS WHICH ARE PLACED AT PAGE NO. 539 OF THE COMPILATION. IT WAS FURTHER STATED THAT I T IS NOT A PERSISTENT LOSS MAKER AS THAT COMPANY EARNED PROFIT IN FY 2010 - 11 ON ENTITY BASIS AND IN FY 2009 - 10 ON SEGMENTAL BASIS. IT WAS FURTHER SUBMITTED THAT ORDER OF THE COORDINATE BENCH FOR AY 2010 - 11 SAME HAS BEEN DIRECTED FOR INCLUSION. THE LD DEPAR TMENTAL REPRESENTATIVE SUBMITTED THAT IN THE BPO SERVICES SEGMENT THIS COMPANY IS INCURRING LOSSES. THEREFORE, THE FINDING OF THE LD TRANSFER PRICING OFFICER IS CORRECT. 20. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. THE COORDINATE BENCH FOR AY 2010 - 11 VIDE PARA NO. 10.44 AND 11 HAS DIRECTED FOR THE INCLUSION WHICH IS AS UNDER: - CG - VAK SOFTWARE AND EXPORTS LTD, INFORMED TECHNOLOGIES LTD AND MICROGENETIC SYSTEMS LTD SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 16 10.44. THE LD.TPO HAS REJECTED THIS COMPARABLE USING TURNOVER FILTER. WE HAVE DEALT W ITH THIS COMPARABLE ABOVE. IT IS ALSO OBSERVED THAT THE LD.TPO HAS NOT CITED ANY INSTANCE OF FUNCTIONAL DISSIMILARITY OF THIS COMPARABLE COMPANY WITH THAT OF THE ASSESSEE UNDER THE SEGMENT. RELYING UPON THE DISCUSSIONS MADE HEREINABOVE WE DIRECT THE LD.AO/ TPO TO CONSIDER THESE COMPANIES IN THE FINAL LIST OF COMPARABLES. 11. IT IS WORTHWHILE TO NOTE AT THIS JUNCTURE THAT THE LD.TPO HAS CHERRY PICKED THE COMPARABLE WITHOUT CONSIDERING THE FUNCTIONAL /SIMILARITY DIFFERENCES AS WELL AS INSUFFICIENT DATA/INFORMATION AVAILABLE ON THE PUBLIC DOMAIN. IT IS ALSO NOTED THAT THE LD.TPO HAS TO TAKE REASONABLE APPROACH WHILE SELECTING/REJECTING ANY OF THE COMPARABLES. THE LD.TPO SHOULD NOT SELECT ANY COMPARABLE ON THE BASIS OF HYPOTHETICAL APPROACH. MERELY BE CAUSE THE ACCOUNTING YEAR ENDING IS NOT SIMILAR, SHOULD NOT BE A REASON FOR REJECTING A PARTICULAR COMPARABLE WITHOUT HAVING ANY FUNCTIONAL DISSIMILARITY BETWEEN THE COMPARABLE WITH THAT OF AN ASSESSEE. THE LD.TPO MUST CONSIDER A PARTICULAR COMPARABLE COMP ANY BIT DIFFERENT ANY FINANCIAL YEAR ENDING IF THE DATA CAN BE REASONABLY EXTRAPOLATED. THE LD.TPO MUST DEMONSTRATE WITH DOCUMENTARY EVIDENCE/RESEARCH MATERIALS PLACED ON RECORD TO THE CONTRARY TO SUGGEST OTHERWISE. IN THE EVENT THE CONTEMPORARY COMPARATIV E ANALYSIS UNDERTAKEN EASE IN ACCORDANCE WITH THE RULE 10 B (2) AND ALSO IN LINE WITH GLOBALLY ACCEPTED PRACTICES, THE USE OF DIFFERENT ACCOUNTING YEAR IS APPROPRIATE, AS LONG AS THE INTERNATIONAL TRANSACTION PERTAIN TO THE SAME ACCOUNTING YEAR. SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 17 11.1 GROU ND NO. 1, 2, 5 TO 7 STANDS DISPOSED OFF ACCORDINGLY. 21. RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH WHEREIN, THE ABOVE COMPANY IS INCLUDED AFTER DETAILED DISCUSSION HOLDING THAT NO FUNCTIONAL DISSIMILARITY IS POINTED OUT AND FURTHER AS THE FA CT SHOWS THAT ASSESSEE IS NOT A PERSISTENT LOSS MAKER , WE DIRECT THE LD AO/ TPO TO INCLUDE THE ABOVE COMPANY. 22. NOW THE NEXT OBJECTION OF THE ASSESSEE IS WITH RESPECT TO THE ADVISORY SUPPORT SEGMENT WHEREIN, IT IS PRESSING FOR INCLUSION OF ICRA MANAGEMENT A ND CONSULTING SERVICES LTD AS WELL AS CYBER MEDIA RESEARCH LTD. 23. THE LD AR SUBMITTED THAT THE TRANSFER PRICING OFFICER HAS ACCEPTED THESE COMPANIES AS COMPARABLE IN AY 2009 - 10 WHEREAS, FOR THIS YEAR IT IS STATED THAT THEY ARE FUNCTIONALLY DISSIMILAR. 24. TH E LD DR SUBMITTED THAT I CRA SERVICE SPECTRUM IS VERY WIDE COMPARED TO THE ASSESSEE AND FURTHER, WITH RESPECT TO THE CYBER MEDIA RESEARCH LTD IT IS ALSO ENGAGED IN VERY HIGH END SERVICES. 25. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND FIND THAT ICR A IS PROVIDING CONSULTING AND ADVISORY SERVICES AND CYBER MEDIA RESEARCH LTD IS ENGAGED IN RESEARCH AND CONSULTING SERVICES. THOUGH BOTH HAVE DIFFERENT SEGMENT OF ADVISORY SERVICES HOWEVER, THE LD TPO HAS ACCEPTED I CRA AS COMPARABLE COMPANY IN AY 2009 - 10 A S WELL AS IN AY 2011 - 12. HE HAS FURTHER ACCEPTED CYBER MEDIA AS COMPARABLE IN AY 2009 - 10. IN VIEW OF THESE FACTS WE DO NOT FIND ANY REASON THAT THIS COMPAN IES SHOULD NOT BE INCLUDED FOR THE COMPARABILITY ANALYSIS WITH RESPECT TO THE ADVISORY SERVICE SEGMEN T OF THE ASSESSEE. HENCE, WE DIRECT THE LD TPO FOR THEIR INCLUSION ACCORDINGLY. SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 18 26. THE ASSESSEE IS ALSO PRESSING FOR INCLUSION OF LADDER UP CORPORATE ADVISORY PVT. LTD WHICH HAS THE PLI OF 30.72%. THE LD TRANSFER PRICING OFFICER HAS INCLUDED THE ABOVE COMPAR ABLE COMPANY HOLDING IT FUNCTIONALLY SIMILAR. 27. THE LD AUTHORISED REPRESENTATIVE HAS SUBMITTED THAT THE ABOVE COMPANY DOES NOT HAVE ANY SEGMENTAL INFORMATION AND IS ENGAGED IN INVESTMENT BANKING AND MERCHANT BANKING SERVICES. THOUGH THE TPO HAS EXCLUDED OTH ER INVESTMENT BANKING COMPANIES, HOWEVER, THIS COMPARABLE COMPANY WAS NOT EXCLUDED. HE THEREFORE, SUBMITTED THAT THERE IS AN INCONSISTENCY IN THE APPROACH OF LD TPO. HE FURTHER SUBMITTED SEVERAL DECISIONS WHEREIN, INVESTMENT MAKING SERVICES PROVIDERS ARE H ELD TO BE NOT COMPARABLE WITH ADVISORY SUPPORT SERVICES. 28. THE LD DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF THE LD TPO AND DRP. 29. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. IT IS ADMITTED FACT THAT THE COMPARABLE SELECTED BY THE LD TRANSF ER PRICING OFFICER IS ENGAGED IN TWIN ACTIVITIES INVESTMENT BANKING AND MERCHANT BANKING SERVICES ALONG WITH INVESTMENT ADVISORY SERVICES. FURTHER, NO SEGMENTAL INFORMATION WITH RESPECT TO THE ADVISORY SERVICES IS MADE AVAILABLE. FURTHER, THE LD TPO HIMSEL F HAS EXCLUDED THE INVESTMENT BANKING ACTIVITY FROM THE COMPARABILITY ANALYSIS WE DO NOT FIND ANY REASON TO KEEP THIS COMPARABLE INCOMPARABILITY ANALYSIS IN ABSENCE OF SEGMENTAL INFORMATION AVAILABLE. HENCE, THE TPO IS DIRECTED TO EXCLUDE THIS COMPANY. 30. THE ASSESSEE IS ALSO SEEKING EXCLUSION OF INMACS MANAGEMENT SERVICES LTD, A COMPARABLE SELECTED BY THE LD TRANSFER PRICING OFFICER HAVING 42.66% OF THE PLI. SUN LIFE INDIA SERVICES CENTRE PVT. LTD VS. ACIT, ITA NO. 468/DEL/2017 (ASSESSMENT YEAR: 2012 - 13) PAGE | 19 31. THE LD AUTHORISED REPRESENTATIVE SUBMITTED THAT THIS COMPANY IS ENGAGED IN INVESTMENT BANKING, BPO, ARBITRATION AND DISPUTE RESOLUTION SERVICES AND DOES NOT HAVE SEGMENTAL ANALYSIS OF THE FINANCIALS OF VARIOUS VERTICALS. 32. THE LD DR RELIED UPON THE ORDER OF THE LD TPO. 33. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. THE COMPA RA BLE COMPANY UNDISPUTEDLY IS PROVIDING ADVISORY SERVICES COUPLED WITH INVESTMENT BANKING SERVICES AND DISPUTE RESOLUTION SERVICES. THE LD TPO HAS ACCEPTED THAT INVESTMENT BANKING SEGMENT IS NOT COMPARABLE WITH THE ADVISORY SEGMENT. THEREFORE, IN ABSENCE OF SEGMENTAL INFORMATION TPO IS DIRECTED TO EXCLUDE THIS COMPARABLE ACCORDINGLY. 34. IN VIEW OF THE ABOVE GROUND NO. 3 TO 6 ARE DISPOSED OFF ACCEPTING THE CONTENTION OF THE ASSESSEE F OR INCLUSION AND EXCLUSION OF CERTAIN COMPARABLES CONTESTED. ALL OTHER GROUNDS OTHER THAN RELATED TO THOSE COMPARABLES CONTESTED IN THE ABOVE GROUNDS NO. 3 TO 6 ARE DISMISSED. THEREFORE, GROUND NO. 3 TO 6 ARE PARTLY ALLOWED. 35. GROUND NO. 10 OF THE APPEAL IS GENERAL IN NATURE AND THEREFORE, SAME IS DISMISSED. 36. GROUND NO. 12 OF THE APPEAL CHALLENGING THE INITIATION OF PENALTY PROCEEDINGS IS PRE MATURE AND HENCE, DISMISSED. 37. GROUND NO. 11 OF THE APPEAL IS WITH RESPECT TO NOT GRANTING MAT CREDIT AVAILABLE TO THE APPELLANT AS PER PROVISION OF 115JAA OF THE ACT. 38. THE LD AUTHORISED REPRESENTATIVE SUBMITTED THAT ASSESSEE IS ENTITLED TO MAT CREDIT WHICH HAS NOT BEEN GRANTED BY THE LD AO. 39. THE LD DR ALSO SUBMITTED THAT IN CASE THE MAT CREDIT IS AVAILABLE TO THE ASSESS EE THEN IT DOES NOT HAVE ANY OBJECTION IF THE AO IS